James Fayed Penalty Phase Day 2

I rushed out of the house so quickly this morning that I forgot my wedding rings and my note tablets to protect my lap from the heat of my laptop, and to take hand notes. If I have to take a handwritten note, I guess I'll write on the back of some checks.

9:03 am: I'm inside Dept 109 and Judge Kennedy is still hearing other cases. I came into the courtroom in the middle of an individual who skipped out on jury service.

JK: We waited for over an hour for you to show up!

The next case, the defense attorney has a juror badge on and Kennedy asks him about that. Apparently, he's on a civil case in the Stanley Mosk courthouse and hasn't been removed by either side. Interesting. Very short hearing.

Now Judge Kennedy is meeting with counsel for her next case up. The prosecution has one last thing regarding subpoenaed records from Dorsey High School. That's interesting. I'll have to find out what case that is.

9:13 am: Fayed's brown suit is brought back to the holding area. Werksman is here, so are Jackson and Harmon.

9:16 am: Meister is here. Jackson and Meister just had a short discussion about the closing arguments. Harmon asks the clerk what the next number is for exhibits. The DA's female clerk is here. I've been admiring her large red-leather shoulder bag she's carried every day she's been here.

9:18 am: A silver-haired attorney looking gentleman enters 109 and sits in the front row behind the bailiffs desk. Fayed comes out. The gentleman moves to the back row. They're ready. The bailiff asks who the gentleman is. All I get is his first name and he is an attorney.

9:19 am: On the record. Meister is looking over the official record and there is a piece of his OS that is missing. Jackson?

AJ: I want to revisit an issue that came up last week, regarding the letter attached to the will.

AJ: We were under the mistaken belief that Desiree, that she had never seen it before. She saw the letter last August (via the family attorney). I want if I can, to ask the court to take note of couple cases we've researched over the weekend to reconsider it's position to read the letter in front of the jurors.

AJ: Valencia case. Jackson reads portions of the ruling of this case into the record that supports his position.

9:22 am: Greg Fisher from CBS is here. I get Greg caught up on what Jackson is arguing.

Now Jackson points to a US district case. Jackson says he knows it's not binding, but it is instructive.

9:32 am: Judge Kennedy asks for the text of the letter to be put up on the screen. It's a photo of what looks like the inside of a blank card, handwritten on the inside of the card on the left and right sides. You can see the text of the letter in Friday's entry.

9:33 am: Meister is drawing a distinction between Fayed and the cases cited by letters.

SM: Those letters were sent to and received by family members when the victim was still alive. They were part of the family members experience while the victims were still alive. The part of the life they had lived with the victim, was in that (those letters).

SM: Pam's letter was written 2 years before she died. It was premonition, and it was not seen by the kids until long after the murder. Not part of her keepsakes not part of her interaction with her mother and (snip) and I think that's significant. While the people are scaling back their witnesses, they want to introduce this letter. (snip) So, I do think for those two instances the letter should not be admitted. 352 issue. And I think that the court's ruling should still stand.

Judge asks to see the cases and Jackson hands her the papers he was reading from. Werksman steps out of the courtroom. Meister and Fayed appear to be discussing something. Werksman comes right back in. Judge Kennedy looks through the cases cited by Jackson.

Judge Kennedy, talks about the Federal Rules of evidence not applying in the penalty phase, but they do in California.

JK: (The) primary concern the court had, was this letter was going to be sprung on the witness in front of the jury for the first time, and that the emotional response and gender would be really over the top and, I mean, and who wouldn't expect it to be.

JK: That was the overriding reason that the court determined it shouldn't come in in that fashion. But you say that the witness has been aware of this letter for over a year?

AJ: Since last August.

JK: But how does it speak to the criteria that speaks forth to the (?) within the rules of evidence that apply to this stage and proceedings?

AJ: Section A. The impact that the victim's (had?). They are defined as victims under the ?Marcy law. Everything that has an impact on how they view the death of the decedent. (snip) Or how they remember who the decedent was and how they (?) react to each other. ( snip) The fact that future events will be (lost?). This letter represents the last words to Desiree. Last words to Gigi. These are the thoughts, feelings and emotions that Pamela Fayed wanted to depart on Desiree, on Gigi.

AJ: Not because of the truth of what it says, but for the impact of what it has on the reader, Desiree.

Werksman asks to address the court.

MW: These were not Pam's last words. These (words) were Pam's philosophy on life. It doesn't perform (to?) the (?) of victim impact. It wasn't a part of their life. It was a letter mean to be read with the will that was meant to be read at some unknown time in the future (at an attorney's office?).

JK: I am going to allow the people to utilize the letter in their examination of Desiree Goudie. Since she has (seen it), she's familiar with it. She's been exposed to it in the past. It's not going to be as emotionally huge as I thought in the past. (more)

Miester asks that Deisree be sworn that she has seen it before. That's agreed to. Jackson asks for two new photos to be used of the funeral. Meister objects to the photos of the funeral.

SM: Graveside photos, taken by a friend should not be admitted into evidence. It's inflammatory and over the top. (snip) There are portions of the people's case that have read like a second funeral for Pam. I think the photos from the funeral are inappropriate. (snip) It's cumulative. We do know that the girls put their mother to rest.

JK: The photos are not incendiary. I'll allow them.

The mitigation attorney is here and her presence is written into the record.

Desiree Goudie is here. She's in a scoop-neck, A-line type black dress and wearing a long gray cardigan. Desiree is sworn in.

Desiree states she first saw the document in August, 2008. She identifies the handwriting as belonging to her mother.

DG: I was meeting with my attorney and I was trying to find a newer will and testament.

SM: First saw the letter only after your mom died?

DG: Yes.

That's it. Meister asks that he have some time after the people rest to meet with his witnesses that just flew in last night. He asks for a 1/2 hour. Judge Kennedy agrees.

Now ready for the jury at 9:56 am. I'm moving to a word type program for the rest of my notes today.

Morning Session Summary
12:23 pm: The first witness of the day was Renee Goudie, wife of Scott Goudie. At one point in her testimony she got very angry in her tone and addressed James Fayed directly. DDA Harmon was asking her about her feelings regarding the murder of her relative. Here is a short excerpt.

EH: Are you angry?

RG: VERY angry. (snip) It saddens me. (snip) It’s one thing what he did to Pammy, but what he did to MY FAMILY, shame on you for what (you did)!!

The defense quickly objected, the statements stricken and Judge Kennedy admonished her to limit her answers to the questions asked.

The final prosecution witness in the penalty phase was Desiree Goudie who testified about her life growing up with her mother before and after Fayed came into their lives. She cried during a good portion of her testimony, breaking down at times. She testified that when she learned of her mother's murder she went into shock and became "numb." She was scheduled to enter college in two weeks and her mother's death created a load of responsibilities thrown at her from all directions all at once. She had to plan her mother's funeral and temporarily become a parent to her younger sister and at the same time, her step-father wasn't answering his phone for three days. She didn't hear from him, not even to inquire about his child, her younger sister, Jeanett. She literally didn't know what to do but had to maintain a semblance of control for the sake of her younger sister.

12:37 pm: I worked as much as I could over the weekend trying to finish the edit on last Friday's testimony. I'm about 70% finished with that. Although it may take me some time, I will eventually get every day's testimony of this trial up on T&T. Thank you for your patience. Sprocket.

3:38 pm:I'm home. The defense presented three witnesses in the penalty phase:

1. James Sadler
2. James Heubert (sp?) Tyler
3 Melanie Jackman

The first witness was a man Fayed knew in high school. This witness testified to Fayed's character and personality when he knew him from about age 16 to 28-29 years old. This witness had no contact with Fayed since then.

Witness #2 was a man Fayed worked with on a military base (El Toro?) in Orange County, when Fayed was a high-wire civilian electrician. He met Fayed, liked him and they became friends at work and outside of work. Apparently, during that time (mid 90's) Fayed was instrumental in the recovery of some high-voltage wire worth several thousands of dollars that was stolen from the base. (There was a lot of theft on the base by civilians the witness testified.) This witness had not seen or communicated with Fayed since he moved up to Ventura Co, about 97, around the time Fayed met Pamela and began a relationship with her.

Witness #3 was a long-time friend Fayed first met in high school. They lost touch for a short time then reconnected when he appeared one day at her and her husband's business, a motorcycle shop they run out of a garage next to their home. They reconnected and have been friends ever since. She testified to his personality and character and talked about a vacation Fayed, her husband and she took to New Mexico. She had not seen Fayed since he had left for California (which she testified was in 95-96, but Tyler testified he met Fayed around 1992 on the military base). She and Fayed did keep in touch by phone, occasional E-mails, and Fayed sent her photos of his family. She testified she spoke on the phone with Pam on occasion but had never met her, or the kids personally.

There was one jaw dropping moment (well, at least for me) when she started to break down on the stand, became very emotional and cried. It was over a motorcycle. Apparently, her husband had lovingly built a special motorcycle for Jim, but since he got arrested, he was never able to receive it. Consequently, her husband took the bike apart. On cross Jackson asked, if Fayed paid for this motorcycle. (On direct, it was not clear if this was a gift to Fayed or a bike he had ordered to be made.) She testified that Fayed had put a down payment on it, but had not paid for it fully. She was totally upset about this because her husband had put so much love into building this bike for their friend. She went on and on about how they searched online, eBay to find original, 1963 parts for this custom built Harley Davidson bike, which was the year Jim was born. (I couldn't believe how upset she was over the fact that Jim never got to ride this bike.)

On direct examination she testified that she never knew Fayed to say a negative thing about Pamela. On cross examination, Jackson presented her with two E-mails that Fayed had written her, where Fayed spoke quite disparagingly about Pamela. The witness stated she did not remember those E-mails. On redirect, she stated that it wasn't until recently that she started to use the Internet and E-mail more often. Back then, she didn't look at/use her E-mail much.

And then the defense rested. There were no rebuttal witnesses from the people. Not a single family member testified on Fayed's behalf in the penalty phase.

There is an interesting development that Judge Kennedy brought up to counsel right before I left. The issue is with CAl-JIC instruction 635 that requires witness testimony for the people to argue the conspiracy charge. At 2:30 pm, Judge Kennedy gave both sides one hour to do research and come back at 3:30 pm for arguments. I decided not to stay to hear the arguments. was too tired, but that could be an interesting development.

Judge Kennedy ordered jurors back at 10:30 am tomorrow for jury instructions and closing arguments.

I will continue working late into the evening tonight to get my notes up on the blog as soon possible, so please keep checking back. If I get caught up to work on the detail of today's testimony, it will be posted as "Part II." Sprocket.